Early on, Mitchell insisted that, although he personally opposes abortion, “I’m not an anti-abortion activist. I never have been.” His goal is to destroy “judicial supremacy”—the idea that the Supreme Court is the final authority on the meaning of the Constitution—a campaign with bipartisan potential at a moment when liberals and progressives have little to gain from an imposing conservative Court. ...
Mitchell disapproved of the Supreme Court’s use of “language that makes its precedents seem sacrosanct or irreversible,” even going “so far to equate its interpretations of the Constitution with the Constitution itself.” The conventional idea that courts can “strike down,” “invalidate,” or “block” statutes was, he wrote, simply wrong. A court can “opine” that a statute is unconstitutional and tell an official not to enforce it, but the statute nonetheless “remains a law until it is repealed by the legislature that enacted it.” ...
In their dissenting opinions on S.B. 8, both Chief Justice Roberts and Justice Sonia Sotomayor went to first judicial principles by invoking Marbury v. Madison to rebuke Mitchell’s judiciary-evading tactic. In Marbury, in 1803, Chief Justice John Marshall proclaimed, “It is emphatically the province and duty of the judicial department to say what the law is.” There, the Supreme Court, for the first time, declared an act of Congress unconstitutional and “entirely void.” Because the Court implied that its own authority to interpret the Constitution is superior to that of the other branches, the case is the fountainhead of judicial supremacy. One could view it as a power grab that we have mostly accepted for more than two hundred years.
Mitchell said he found it telling that Roberts and Sotomayor treated judicial supremacy as “axiomatic” rather than as “a choice that must be defended.” From the beginning of the country, there were prominent anti-federalists who were opposed to judicial supremacy. Thomas Jefferson—who was President when Marbury was decided—believed that “each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the constitution.” Jefferson’s view, which scholars have called departmentalism, countered judicial supremacy with the claim that the power to determine whether acts violate the Constitution is enjoyed by each branch in its own sphere of action.
Several Presidents since have embraced departmentalism to varying degrees. Andrew Jackson explained his veto of Congress’s bill to recharter the Second Bank of the United States as being based on its unconstitutionality, even though the Supreme Court had approved Congress’s authority to so act years earlier. He said, “The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both.” The same year, Chief Justice Marshall held that Georgia’s regulations on Cherokee lands violated federal treaties. An enraged Jackson didn’t enforce the ruling, which enabled Georgia to disobey it.
Abraham Lincoln resisted judicial supremacy in his scathing reaction to Dred Scott v. Sandford, in which the Court declared that Congress’s prohibition of slavery in the territories was unconstitutional. Lincoln, who was not yet President, acknowledged that the Court resolved the parties’ dispute, but he rejected the idea that the ruling authoritatively answered the constitutional question of slavery. In his first Inaugural Address, Lincoln further worried that, if policy on “vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court,” then “the people will have ceased to be their own rulers.” ...
Like other critics of judicial supremacy, Mitchell believes that Congress, rather than the Court, should have final say on constitutional meaning, even if it means rights might shift along with electoral outcomes—and the Court, where possible, should decide matters based on congressional statutes rather than judicial doctrines on constitutional rights.
That approach has recently put Mitchell at odds with other conservative lawyers.
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